Mutumwa Mawere

CONVERSATIONS WITH MAWERE

"Invest in the change you want to see"

- Mutumwa Mawere -

FOSMM WHATSAPP THREAD AS AT 21 OCTOBER 2016

Posted on November 01st 2016

Norman FOSMM: is the Rocn Act an extension of the PCA........@Thuto20/10/2016, 1:46 PM - Dziva Mawere: No they are separate pieces of legislation20/10/2016, 1:47 PM - Adv T Mavula: They are separate20/10/2016, 1:48 PM - Dziva Mawere: The Recon Act creates its culpability test20/10/2016, 1:49 PM - ‪+263 77 735 0451‬: Madam Matibenga, great to get u aboard.20/10/2016, 1:49 PM - Norman FOSMM: Preamble for the RECON ACT: To provide for the reconstruction of State-indebted companies and associate companies that are unable to repay credits made to them from public funds, or in respect of whose liabilities the State has issued any guarantee that has become due; to provide for appointment and functions of administrators of companies under reconstruction; to provide for formulation and implementation of schemes of reconstruction in respect of such companies; to amend the Prevention of Corruption Act [Chapter 9:16]; and to provide for matters connected with or incidental to the foregoing.ENACTED by the President and the Parliament of Zimbabwe.20/10/2016, 1:49 PM - Dziva Mawere: The strange thing is that on 26 August 2004 SMM was not state indebted but miraculously became indebted on 3 September when the regulations were published without notice

20/10/2016, 1:51 PM - Dziva Mawere: You are still ahead of the timeline. Can we finish the PCA and acts purportedly done in its name and spirit20/10/2016, 1:52 PM - Norman FOSMM: l wanted clarity regarding the relationship btwn the two acts...........as to which one takes precedent over the other.......or do the operate in parrallel20/10/2016, 1:54 PM - Dziva Mawere: It is a question that we need to resolve whether two laws can render one subsidiary and another superior20/10/2016, 1:55 PM - Dziva Mawere: Can two laws operate concurrently for the same events and facts?20/10/2016, 1:58 PM - Norman FOSMM: in criminal law.........usually the charges would read to say...........as read to gether with........section.....20/10/2016, 1:59 PM - Dziva Mawere: But there is no such thing. Which law then becomes operative20/10/2016, 2:00 PM - Norman FOSMM: l do believe that statutes cannot operate that way.............the cause of action should b from one act.............20/10/2016, 2:00 PM - Dziva Mawere: 👍👍20/10/2016, 2:00 PM - Adv T Mavula: I think the intention was for the two to compliment each other to achieve the result. Because you will notice charges for MMs specification where brought under the PCA and the company was specified thru Recon Act20/10/2016, 2:01 PM - Adv T Mavula: Remember our discussion on whether the PCA applied to artifiacial persons or not. Where we found that the interpretation excluded artificial persons. Hence SMM would have escaped alleged culpability .20/10/2016, 2:02 PM - Adv T Mavula: I meant it in the sense if how it happened not "complement" in a legal way20/10/2016, 2:02 PM - Norman FOSMM: but f that is allowed...........then the essential elements of a cause of action would b drawn from more than 1 acts.......just to build a case......20/10/2016, 2:03 PM - Dziva Mawere: No the specification was on 26 August 2004 and Recon reg on 3 September. Where would be the connection?20/10/2016, 2:03 PM - Norman FOSMM: each statute normally defines a complete cause of action........absence of one element from the facts invalidates the cause of action20/10/2016, 2:04 PM - Adv T Mavula: Its not allowed but it was made possible by having the SI which was letter passed into Law20/10/2016, 2:05 PM - Dziva Mawere: How so? Where are the facts?20/10/2016, 2:06 PM - Norman FOSMM: @MDM........so you mean that as of 26 August 2004, investigation shows that there is no case to answer..............suprisingly on 3 September........u now have a case20/10/2016, 2:07 PM - Dziva Mawere: I mean Specification was done in terms of the PCA and not Recon Act20/10/2016, 2:08 PM - Norman FOSMM: ok then20/10/2016, 2:18 PM - Adv T Mavula: Let's look at*PCA* s2(d) in relation to a specified person*Recon Act* S3 specifically lists artificial persons ie corporate bodies as the subject of specification.

You get the point I ma trying to make in so far as the 2 acts are concerned? Their reach in so far as their subject is?20/10/2016, 2:20 PM - Dziva Mawere: It is a fact that when the specification order was issued the Recon Act was not born.20/10/2016, 2:21 PM - Norman FOSMM: "Any person" would include the appellant or any registered company.The Interpretation Act [Cap 1:01], s 3 defines a person to include any companyincorporated; or any local or other similar authority. It is irrelevant whether a person is aresident or citizen of another country as long as that person has done one of the thingsmentioned in s 6(1) of the Act. His companies are incorporated according to the laws ofZimbabwe.............................CHIDYAUSIKU..........J20/10/2016, 2:21 PM - Adv T Mavula: What then happens when the Recon Act comes into the picture is an amendment to *s15,s282 and s37 of PCA* to align it with the provisions of the Recon Act20/10/2016, 2:21 PM - Norman FOSMM: SC 67/07............PCA20/10/2016, 2:22 PM - Adv T Mavula: When was the SI in terms of the Predential decree gazetted?20/10/2016, 2:24 PM - Adv T Mavula: This was a matter of Judicial Interpretation of which otherwise may be interpreted differently by another bench but not in the balck and white in the Act...is it not so?20/10/2016, 2:28 PM - Norman FOSMM: @Thuto............its suprising how a company can be found guilty of corruption.......divorcive of its directors20/10/2016, 2:32 PM - Norman FOSMM: if we were to adopt Chidyausiku's defination of a person in terms of the PCA..........what absurdity will arise then20/10/2016, 2:43 PM - Dziva Mawere: Bizarre20/10/2016, 2:43 PM - Dziva Mawere: Friday 3 September 200420/10/2016, 2:44 PM - Dziva Mawere: The decree on 6 September 200420/10/2016, 2:56 PM - Adv T Mavula: No absurdity at all its a point of different interpretation. A technicality available due to the silence of the act in respect to the artificial person20/10/2016, 2:58 PM - Adv T Mavula: If the PCA sufficiently covered the issues why then would the Recon Act be invoked20/10/2016, 2:59 PM - Tawanda Fosmm: Is it technical,,i thought it was drafted which full understanding of constitutionalism20/10/2016, 3:00 PM - Tawanda Fosmm: With20/10/2016, 3:08 PM - Norman FOSMM: constitutionalism..............???? giving someone unfettered powers to arrest, to detain, to judge...., compelling someone to incriminate himself20/10/2016, 3:23 PM - Tawanda Fosmm: My point is the act was misinterprated even in its appliacation20/10/2016, 4:57 PM - Dziva Mawere: Back to life20/10/2016, 5:07 PM - Dziva Mawere: The issue of criminality in so far as acts that defeat the ends of justice are concerned can come in. Did Chinamasa have constructive knowledge that the allegations that informed the issuance of my warrant of arrest on 17 May 2004 and subsequent arrest on 25 May 2004 were the same facts and circumstances that informed my specification on 9 July 2004 and the appointment of an Investigator on 13 August 2004 followed by the specification order in respect of SMM on 26 August 2004.

If the Minister was aware that the extradition case against me was dismissed in SA and therefore as fact, the basis of the externalization case was unfounded, any impartial and detached Minister ought to have stopped there.

Chinamasa knew and ought to have known that no facts existed in the jurisdiction of Zimbabwe to prosecute an allegation in respect of facts and circumstances that could have only taken place in South Africa.

[21/10, 07:54] mdmawere1: Morning[21/10, 08:06] Adv T Mavula: Morning[21/10, 08:07] mdmawere1: How are you this morning[21/10, 08:28] Adv T Mavula: I am well just pulling through as the days come[21/10, 08:29] Adv T Mavula: This will be our discourse today. But we can start a but later or at midday[21/10, 08:30] mdmawere1: How best can we frame questions[21/10, 08:34] Adv T Mavula: We interpret the Act in light of the SMM-Petter-SAS arrangement.

Was there an intention to defraud?Were the transactions bona fide or corrupt? Is the allegation of mala fides made true ?Could SAS be an agent as per the PCA? Was there a principal/agent set up?

Then we look into the cession proceedings themselves[21/10, 08:35] mdmawere1: What would be the jurisdiction of the alleged crime[21/10, 08:37] Adv T Mavula: The cause of action arose in RSA that should be the domicile of the crime[21/10, 08:38] Adv T Mavula: Which brings us to the issue we discussed earlier of overreaching of zim law into that jurisdiction[21/10, 08:38] mdmawere1: How can a statute in Zimbabwe regulate the facts and circumstances that occurred outside its borders[21/10, 08:39] mdmawere1: Does Zimbabwean law have extra-territorial jurisdiction21/10/2016, 8:44 AM - Dziva Mawere: Shared knowledge holds the promise:

[21/10, 08:39] Adv T Mavula: It doesn't have[21/10, 08:40] mdmawere1: So how can the PCA be invoked for things that are inherently offside[21/10, 08:40] Adv T Mavula: It can only be cited in case law as a persuasive source not in its form as a statute but as the decision of the court[21/10, 08:41] mdmawere1: Are you aware of the extradition case?[21/10, 08:42] Adv T Mavula: We found that there was a vehicle for this through the reps of SMM and the judges involved[21/10, 08:42] mdmawere1: http://zimboconnect.com/2015/01/mutumwa-mawere-a-freemansouth-african-courts/[21/10, 08:42] Adv T Mavula: Yes the one which was handled by SAPS?[21/10, 08:43] mdmawere1: http://allafrica.com/stories/200407010178.html[21/10, 08:43] mdmawere1: So do you think that Chinamasa had no constructive knowledge of the extradition matter?21/10/2016, 8:52 AM - Dziva Mawere: A platform for sharing;

[21/10, 08:47] Adv T Mavula: He certainly had knowledge[21/10, 08:47] Adv T Mavula: He was actually was instrumental in the process if I were to bet my last penny[21/10, 08:49] mdmawere1: If he had constructive knowledge, do you think my subsequent specification in Zimbabwe on the same facts and circumstances that the government had failed to assert in SA constituted the intended use of power power?[21/10, 08:51] mdmawere1: What is the law on using different forums to determine a dispute between the same parties of the same facts?21/10/2016, 8:54 AM - Doc 1873: Good morning I would caution against rushing to dismiss the ability of the case of SMM being heard in South Africa. Thus us possible under private law, conflict of laws. The cases being dealt with normal have to pass two factors namely lexi fori and lexi causae and locus standi is founded in various ways namely that SAS was RSA or the business was part conducted in RSA and so forth. So yes the case running in RSA is not completely a faulty matter on its own but all these need careful consideration.21/10/2016, 8:57 AM - ‪+44 7481 818249‬: Can one file a case in SA when some of the arguments touch on government decisions? Couldn't the respondents then just please sovereign immunity?21/10/2016, 9:02 AM - Dziva Mawere: That is not the question in the forum. The question is the legality and constitutionality of using the Zim jurisdiction to deal with a dispute relating to a matter that occurred in a foreign jurisdiction. Suppose a Zimbabwean commits murder in a foreign jurisdiction, can the jurisdiction of his country of birth be competent to resolve the murder issue?21/10/2016, 9:03 AM - Dziva Mawere: Perhaps you can expand on the questions and relate them to the issue in the forum.21/10/2016, 9:06 AM - Doc 1873: There is a logical argument which can emanate from there but I think you just need to rephrase it until it comes out of the box clearly in terms of the status or gown warn by Chinamasa when he approached the RSA case.21/10/2016, 9:08 AM - Dziva Mawere: The Attorney General approached the SA courts and not Chinamasa but after failing to secure extradition, Chinamasa took over the matter as the driver21/10/2016, 9:08 AM - Doc 1873: That is called the lexi causae, to answer that question yes it is possible Sir.21/10/2016, 9:09 AM - Dziva Mawere: How so? Is the Zimbabwean jurisdiction competent to adjudicate a dispute that arose in another state21/10/2016, 9:09 AM - Doc 1873: Still the AG represents the gvt and I think that would pass as a gvt matter and not private matter.21/10/2016, 9:12 AM - Dziva Mawere: Indeed. It was a government matter and was informed by the realisation that the SA courts were necessary to determine whether the dispute and person could be extradited to Zimbabwe. If the SA courts was persuaded that the matter in question could be resolved in Zimbabwe, then extradition would have been granted.21/10/2016, 9:12 AM - Doc 1873: In conflict of laws that is exactly what happens, the courts finds the aspects of the dispute in terms of the locality and other factors to determine that which law and if which forum will be used. The court will indeed decide based on that which is why in mercantile law matters must preferable show which law should be used to deal with their disputes.21/10/2016, 9:13 AM - Dziva Mawere: As Adv Mavula has correctly pointed out, the specification flowed directly from the dispute relating to the cession affair. Do we agree on this?21/10/2016, 9:20 AM - Doc 1873: I think that you are correct there. The matter should have been extradition only if the matter involved gvt and then that would have settled the matter there and if there was a prima facie case or not21/10/2016, 9:22 AM - Dziva Mawere: Having failed to secure extradition in a matter in which both the govt and the accused were represented do you believe that any new facts would have existed that could not be presented on the court date21/10/2016, 9:32 AM - Doc 1873: Once extradition failed depending on the reasons, the gvt could have pursued a strictly private matter not with any official garments that gave it preference over the other party to rthe dispute.21/10/2016, 9:35 AM - Tapiwa Chitambo: Zanu PF plunders state resources

Over the years, the Zanu PF regime has always illegally and unconstitutionally conflated the relationship between Zanu PF as a political party and the State or government. Because Zanu PF is basically a commandist and totalitarian quasi - political and militarised organisation, they have never, ever appreciated that a political party, even if it happens to be the ruling party, is not the same as a government. Put alternatively, the ruling party is not the government and conversely, the government is not the ruling party.In a modern constitutional democracy,these two bodies are indeed, separate and distinct entities.

Indigenisation Minister, Patrick Zhuwawo, was recently quoted in the media boasting that the Zanu PF regime will continue using State resources to fund party projects and that they will not offer any apology for conducting themselves in such an unlawful and patently criminal activity. Indeed, whilst addressing a small number of people who had been violently commandeered to attend a Zanu PF campaign rally in Norton a few days ago, the Zanu PF youth secretary, one Kudzanai Chipanga, parcelled out 5,000 unserviced residential stands to Zanu PF supporters in a clear and unmitigated case of vote - buying.

Zimbabwe is presently in a debilitating and horrifying political and socio - economic mess as a direct result of the manner in which, over the decades, the Zanu PF regime has ransacked and looted State resources to fund the programs of their crumbling and faction - ridden political organisation.

In fact, the regime has never made it a secret that it would use any means available, fair or foul, to continue to hold onto power in Zimbabwe. As a result, rampant corruption and brazen looting of State resources have become an integral component of the Zanu PF political DNA. Up until such a time that the Zanu PF regime respects and upholds the Constitution of Zimbabwe, we shall continue to experience the erosion of the sacrosanct principles of constitutionality and constitutionalism.

The MDC remains a beacon of hope for the oppressed masses of Zimbabwe. The majority of the people have been pauperised over the past 36 years essentially because the ruling elite has flagrantly violated the rule of law and trashed private property rights. Currently, thousands of unserviced residential stands are being dished out like confetti at a wedding to Zanu PF supporters in all the country's urban and peri-urban areas. This is a carefully calculated move to dilute and dissipate the MDC support base in all its urban and peri-urban strongholds. Bluntly put, the Zanu PF regime is already rigging election 2018.

Once again, the MDC calls upon SADC, the AU and even the UN to urgently intervene in Zimbabwe because we are dealing with a recalcitrant, bigoted, corrupt and terrorist Zanu PF regime that has virtually declared war against anyone and everyone who dares to challenge this renegade regime's excesses. As we have stated on times without number, the Zimbabwe Electoral Commission (ZEC), as currently constituted, is totally and hopelessly incapable of ensuring that election 2018 will be free and fair. The fact of the matter is that ZEC has virtually been held hostage by the CIO operatives and other State security agents who constitute the bulk of the ZEC secretariat.

The continued and rampant looting of State resources by the belligerent but crumbling Zanu PF regime should be stopped forthwith. The people of Zimbabwe have become slaves in their own country of birth.

MDC: Equal Opportunities For AllObert Chaurura GutuMDC National Spokesperson21/10/2016, 10:05 AM - Dziva Mawere: What could have been alternative private options. Extradition was based on an assumption that the facts of the cession could be prosecuted in the Zimbabwean jurisdiction.21/10/2016, 10:08 AM - Myre Maramba left21/10/2016, 10:09 AM - Adv T Mavula: Let me find case law defining the appropriateness or inappropriateness of extra judicial application of law. But the basics are that jurisdiction is found were the cause of action arose, domicile of the parties or location of the causa21/10/2016, 10:10 AM - Dziva Mawere: Makes sense21/10/2016, 10:57 AM - Wildfire 1873: Join us today on The Boiling Point:As we move towards an understanding of the role of public office in a constitutional democracy.at 11am CAT21/10/2016, 12:55 PM - Norman FOSMM: JURISDICTION OF CIVIL MATTERS IN ZIMBABWE.....................Incola Plaintiff v Peregrine Defendant

They are three different circumstances in which the courts have jurisdiction at common law.

(1) If the defendant submits to the court's jurisdiction (doctrine of submission)(2) If it is the court within whose area of jurisdiction the cause of action arose. Cause of action is not enough because of the doctrine of effectiveness. The court will not hear the claim unless the peregrine defendant either had property in Zimbabwe which can be attached to confirm the jurisdiction of the court or the peregrine defendant is in Zimbabwe and can be arrested to confirm the jurisdiction.

Thermoradiant Oven Sales (Pty) Ltd v 1969 (2) SA 295 AD.

The plaintiff was incola and defendant peregrinus. The plaintiff purchased a bakery oven form the defendant for R16 000. The oven was installed in the plaintiff's bakery. The plaintiff had paid almost R13 000 upon delivery. The balance of about R3000 would become payable after the oven had been tested and found to be satisfactory. The oven was found not to be in accordance with the warranties given. The plaintiff cancelled the contract and claimed damages of R22000. The defendant denied liability and counter-claimed the outstanding balance of R3000. The plaintiff applied to attach the defendant's claim to found jurisdiction. The plaintiff succeeded and the defendant appeared.

Held: It is established that an existing claim by the prospective peregrine defendant against the prospective incola plaintiff is attachable to found jurisdiction in the proposed action . However the plaintiff can not attach a claim which it is denying - cannot approbate and reprobate whether the value of the property to be attached should bear some relationship to the claim.

Held: Decided that the property should confirm with the requirements of the doctrine of effectiveness although it does not have to be sufficient to satisfy the judgement which may be given in the case - it must not be trifling value.

(3) Where there is attachment of property or arrest of the peregrine to found and create jurisdiction (Thermodiant (supra) Central African Airways Corporation v Vickers Armstrong Ltd 1956 (2) SA 492.This was an appeal from the decision of the HC-S-Rhodesia. The claim arose from the loss of an aircraft whilst on a flight over Tanganyika (Tanzania). The plaintiff was incola and defendant peregrinus. The aircraft had been supplied by the defendant. The crush was caused by the breakup of the air craft following the fracture of a win which was caused by collision of a bolt hole. It was alleged that the defendant had been negligent in that he had used an unplated bolt which was susceptible to corrosion and yet did not make the bolt accessible to inspection nor indicate that the inspection was necessary.

The plaintiff's claim was for 199.84 and the plaintiff sought to attach a debt owed to defendant of 399. The plaintiff sought to attach to found jurisdiction. The court discussed the relevant authorities of arrests and attachments to found jurisdiction ad concluded that Roman-Dutch common law position is that an incola plaintiff can attach the property of the peregrine defendant to found jurisdiction even though there is no other ground to jurisdiction.

Peregrine Plaintiff v Peregrine Defendant

(i) The court will have jurisdiction if there is submission to the jurisdiction of the court. By instituting proceedings in that it would have accepted jurisdiction.

(ii) If the cause of action arose within its area and there is attachment of property or arrest of the peregrine defendant to confirm jurisdiciton.

(iii) S15 of the HC Act provides that actual attachment of the property or actual arrest of the defendant is not necessary as long as it has been established that there is indeed property which can be attached within the jurisdiction or that the21/10/2016, 12:56 PM - Norman FOSMM: See African Distillers Ltd v Zietkiewiz 1980 ZLR 135

Both the plaintiff and defendant were peregrin. It was an action for damages arising from breach of contract and the parties were seeking to rely on s15. The court had no jurisdiction because neither the property of the peregrines nor the person was unavailable within the jurisdiction of Zimbabwe or attachment for arrest.

N.B An artificial person is a company incorporated in Zimbabwe is an incola or if it is registered in Zimbabwe. All those incorporated outside Zimbabwe are peregrin.21/10/2016, 4:52 PM - Adv T Mavula: Was looking for Thermoradiant case @Norman and what's the other one involving graders21/10/2016, 4:57 PM - Adv T Mavula: But what I was finding in those cases is that they don't go on to test on the applicability of the foreign law in the area where jurisdiction has been found. The court only adopts the facts and litigants but *subjects them to its own laws* not the *peregrinus law*21/10/2016, 5:08 PM - Norman FOSMM: l do believe that the overal assesment would b whether or not the cause of action to be determined does not contradict with the local laws21/10/2016, 5:09 PM - Dziva Mawere: The issue is whether the events of the cession and alleged injury could be transported to Zimbabwe and jurisdiction could be established to deal with allegations on property that was allegedly diverted in SA21/10/2016, 5:11 PM - Norman FOSMM: @MDM who was the complainant..........and his/her citizenship?21/10/2016, 5:11 PM - Dziva Mawere: Which matter21/10/2016, 5:11 PM - Norman FOSMM: who was the Defendant , his/ her citizenship?21/10/2016, 5:12 PM - Dziva Mawere: Extradition?21/10/2016, 5:12 PM - Norman FOSMM: the cession one21/10/2016, 5:12 PM - Norman FOSMM: 👆🏿21/10/2016, 5:14 PM - Dziva Mawere: The allegation was that I caused a fraudulent cession agreement to be signed and used to obtain a SA Court order that was then used to divert funds due to be paid to SMM for its exports.21/10/2016, 5:15 PM - Norman FOSMM: who was the complainant and what was his/her locality RSA/ ZIM21/10/2016, 5:16 PM - Dziva Mawere: SMM was the exporter but the complainant was the government of Zimbabwe as represented by the Attorney General21/10/2016, 5:17 PM - Norman FOSMM: where did the alleged cause of action arose. locality?21/10/2016, 5:18 PM - Dziva Mawere: The court order was in SA21/10/2016, 5:19 PM - Dziva Mawere: Two of the litigants were domiciled in SA with SMM being a party in so far as it occurred money to Petter Trading a SA company21/10/2016, 5:21 PM - Norman FOSMM: @Thuto.....and sibbs....which law was then applicable in these circumstates?21/10/2016, 5:21 PM - Dziva Mawere: Do you want to see the extradition papers21/10/2016, 5:23 PM - Norman FOSMM: there is no problems in sharing the same21/10/2016, 5:24 PM - Dziva Mawere: No problem. I am getting them scanned. It will help know the characters involved in the enterprise and how the cause of action was framed.21/10/2016, 5:37 PM - Dziva Mawere:

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About

Mutumwa Dziva Mawere (born January 11, 1960 in Bindura, Zimbabwe), is an African business executive, pioneer, financier, banker and entrepreneur best known as the founder and Chairman of Africa Resources Limited ("ARL"). He is known for having built one of the most powerful and influential corporations in Zimbabwe's history